IRS: All your e-mails are belong to us

posted at 12:41 pm on April 11, 2013 by Ed Morrissey

If the IRS pledged to tax spammers, we might not mind them snooping through our e-mail without a warrant. Unfortunately, the IRS thinks it can read your e-mail without getting a judge’s signature on a warrant mainly because they say so, the ACLU discovered after a FOIA request that finally bore fruit yesterday:

The Internal Revenue Service (IRS) has claimed that agents do not need warrants to read people’s emails, text messages and other private electronic communications, according to internal agency documents. …

In a 2009 handbook, the IRS said the Fourth Amendment does not protect emails because Internet users “do not have a reasonable expectation of privacy in such communications.” A 2010 presentation by the IRS Office of General Counsel reiterated the policy.

Under the Electronic Communications Privacy Act (ECPA) of 1986, government officials only need a subpoena, issued without a judge’s approval, to read emails that have been opened or that are more than 180 days old.

If that sounds a little strange to you, you’re not alone. The Sixth Circuit Court of Appeals heard the same argument from police in a case that hinged on accessing e-mail, and ruled that it violated the defendant’s constitutional rights. Even after that ruling, the IRS refused to recognize the decision:

Despite the court decision, U.S. v. Warshak, the IRS kept its email search policy unchanged in a March 2011 update to its employee manual, according to the ACLU.

In an October 2011 memo obtained by the ACLU, an IRS attorney explained that the Warshak decision only applies in the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.

The Boston Globe reports that the IRS won’t even say whether it will honor Warshak in those states:

Recognizing that people now regularly store email in the cloud indefinitely, a federal court in U.S. v. Warshak needed probable cause to compel a company like Google to hand over access.

Here’s the kicker: The IRS won’t say whether it now applies the privacy protections inWarshak to its investigations. Sometimes, what isn’t said can mean more than what is.

A number of major email providers, like Google, have announced that they always demand a warrant from law enforcement in criminal investigations. In lieu of that, some other providers only require lesser court orders or subpoenas that do not require the government to show probable cause that someone has committed a crime. Members of Congress recently renewed their efforts to change the 1986 email privacy law to require a warrant. But until then, the ACLU would like the IRS to act on its own and always use a warrant.

“Let’s hope you never end up on the wrong end of an IRS criminal tax investigation,” Nathan Freed Wessler, an ACLU staff attorney, wrote in a blog post. “But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails.”

The US Constitution was written to constrain the power of the federal government, and that is especially true of the Bill of Rights. This just reminds us of the wisdom of the founders, and the perpetual vigilance required for liberty.

Addendum: In case you wonder about the strange syntax in the headline, here’s the origin. I didn’t notice the reference to it in Wreck-It Ralph; I’ll keep an eye out for it when I see it again.